GAJ
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. F. DANA WINSLOW,
Justice
TRIAL/IAS, PART 12
NASSAU COUNTY
AMILA ALVAREZ and JOHN GEORGE
ALVARZ,
Plaintiffs,
INDEX NO. : 017589/04
-againstMOTION DATE: 09- 15VERIZON COMMUNICATIONS, INC., VERIZON
WIRELESS (V A W) LLC., VERIZON WIRELESS
SERVICES, LLC, ZAN DIAKOS and JOHN
MOTION SEQ # 001, 002
LIV ANOS,
Defendant(s ).
The following papers having been read on the motion: (numbered 1Notice of Motion and Affirmation in Support of Motion to Dismiss.......
Notice of Cross- Motion and Affirmation in Opposition to Motion
and in Support of Cross Motion....................................................
Reply Affirmation in Furher Support of Motion to Dismiss...................
The motion by defendant , VERIZON COMMUNICATIONS, INC. pursuant to
CPLR 3211(a)(7) for an order granting defendant' s motion to dismiss plaintiffs
complaint on the ground that plaintiff has failed to state a cause of action is DENIED.
The cross-motion by plaintiffs , Y AMILA ALVAREZ and JOHN GEORGE
ALVAREZ pursuant to CPLR 3025(b) for an order granting plaintiff s leave to serve and
fie a
supplemental Summons and Amended Complaint is GRANTED.
This motion to dismiss is brought by plaintiffs Yamila Alvarez and John George
Alvarez. They allege that on December 15 2002 at approximately 6:35p.
, Yamila
Alvarez suffered a fall on the premises of the Verizon Wireless store , located at 49 Old
Countr Road , Westbury, New York. As a consequence she allegedly sustained injures
and is suing defendants for negligence. She is seeking damages in the sum of two milion
dollars. Her husband John George Alvarez is also claiming that he suffered damages in
the amount of two hundred and fifty thousand dollars due to the loss of his wife
servIces.
The plaintiff s retained counsel after the alleged incident and served a summons
and complaint dated December 10 , 2004 to defendants , Verizon Communications , Inc.
Verizon Wireless (VA W), LLC, Verizon Wireless Services , LLC , Zan Diakos and John
Livanos. Defendant , Verizon Communications , Inc. , then moved to dismiss the plaintiffs
complaint on July 15
2005 , based on a failure to state a claim under CPLR 3211(a) (7),
which is the present motion before this cour. On July 18 , 2005 , the defendants
collectively served a verified answer in response to the plaintiffs summons and complaint.
Shortly thereafter ,
the plaintiffs served defendants with a notice of cross-motion
requesting leave to serve and fie a supplemental summons and an amended complaint
dated September 7 2005 , whereby they added defendants Bell Atlantic Nynex Mobile
Inc. aIa Bell Atlantic Mobile , Inc. , New York SMSA Limited Partership d//a
Wireless and Cellco Partnership d//a
Verizon Wireless to
Verizon
the complaint.
A motion to dismiss pursuant to CPLR section 3211 (a) (7) allows dismissal of a
complaint if the pleading fails to state a cause of action. The burden in a motion to
dismiss pursuant to CPLR 3211 (a)(7) is " expressly placed upon one who attacks a
(see Foley
pleading for deficiencies in its allegations to show that he is prejudiced"
21 A.
D 'Agostino,
inference
quoting Leon
2d 60 ,
65). The plaintiff is afforded " the benefit of every possible
v.
Martinez,
v.
(see Goshen
" in a motion to dismiss
Mut. Life Ins. Co.,
98 NY2d 314 , 326;
84 NY2d 83, 87). It is well established that a motion to dismiss
must be denied if from (the complaint' s) four comers factual allegations are discerned
which taken together manifest any cause of action cognizable at law
Sanders,
Co.,
264 A. D2d 827 ,
828;
see also
511
West
232
Owners Corp.
(see Mayer et al.
v.
Jennifer Realty
98 NY2d 144 , 152).
Generally, statements in a pleading " shall be sufficiently particular to give the
court and parties notice of the transactions , occurences , or sense of transactions or
occurrences , intended to be proved and the material elements of each cause of action or
defense
section 3013). Although statements in pleadings must be
(see NY CPLR
sufficiently particular ' to give notice to the paries as prescribed under CPLR 3013 , the
pleadings shall be liberally constred
a part is
Corp.
v.
and " defects
McLoughlin 45 Misc. 2d
see also Huntington Utilties Fuel
section 3026;
(see NY CPLR
not prejudiced"
shall be ignored if a substantial right of
79
81). " Any deficiency on the face of the complaint
due to lack of detailed pleading of the facts and circumstances of the alleged fraudulent
conduct is cured by the detailed affidavits submitted by plaintiff, resort to which is proper
for the limited purose of sustaining a pleading against a motion to dismiss (see NY
CPLR
3211 (a)(7);
see also Ackerman
v.
2d 665).
94
Vertical Club Corp.,
After an analysis of the complaint based on its four comers , this cour finds that a
cognizable cause of action has been put forth and the parties have been put on notice. It is
clear from the complaint that the plaintiff, Yamila Alvarez , on December 15 2002 at
6:35pm , was allegedly " caused to be hurt and injured" by reason of the defendants
negligence in their ownership, control , constrction , operation and maintenance of the
premises located at 49 Old Countr Road
Complaint,
(see Plaintif'
, Westbur, New York
paragraph 28). The defendants are advised of the part that was injured , the
location and time of the alleged incident , the alleged cause of the fall and the cause of
action.
The plaintiffs set forth a negligence cause of action in their complaint whereby
they address the three common- law elements of a negligence cause of action. First , a duty
(see Wolfe
and a breach of that duty must be alleged
v.
Samaritan Hospital,
104 A.
143 , 146). The complaint alleges that the defendants had a non- delegable duty to maintain
the premises in a safe condition for " all persons lawfully upon the Premises (Plaintif'
Complaint
page 3- , paragraph 26). The next element of negligence is causation , cause in
(see Wolfe
fact as well as proximate cause along with damages
104 A.
v.
Samaritan Hospital,
2d at , 146). The complaint states that the defendants were negligent "in that their
agents, servants and/or employees: caused , allowed and permitted the said premises... " to
be defective and dangerous
(see Plaintif's
Complaint,
paragraph 27). The plaintiff also
alleges injures sustained as a result of the plaintiffs fall and requests damages in the
amount of two milion dollars and plaintiff John George Alvarez also claims loss of his
wife s services and companionship, thereby damaged by the defendant' s negligence. He
(Plaintif'
alleges damages in the amount of two hundred and fifty thousand dollars
Complaint,
paragraphs 35- 37).
Although the complaint is vague , it does give the defendant' s notice of the
impending action and it alleges a cognizable legal basis for the action. Furhermore
although the defendant' s have submitted an affidavit in support of their claim that
Verizon Communications , Inc. has no connection to the premises , the plaintiff claims that
the relationships of the parties are unclear and would like the opportity
investigate
(see Plaintif's
to fuher
paragraphs 11- 12). The defendants
Affrmation in Opposition,
have failed to show that it has suffered prejudice , therefore the motion is denied.
With regard to plaintiffs cross-motion for leave to amend its pleadings , pursuant
to CPLR 3025 (b), this cour grants the motion. CPLR section 3025 (b) allows a part
to
amend its pleading or supplement it by setting forth " additional or subsequent transactions
or occurences , at any time by leave of cour or by stipulation of all parties. " The
determination to grant leave to amend a pleading is left to the discretion of the
Leszczynski
v.
Kelly
281 A.
McGlynn,
2d 519
520;
v.
see also Sidor
Zuhoski, 257
2d 564). Generally, leave to amend a complaint is given freely " absent
surrise resulting from the delay "
pleading
v.
(see Leszczynski
Kelly
v.
see also Edenwald Contr. Co.
Zuckerbrot Realty Corp.
v.
(see
cour
prejudice or
and there is factual merit to the proposed amended
McGlynn,
281 A.
City of New York
2d at
520;see NY CPLR
3025(b);
see generally Shalom &
60 NY2d 957;
138 Misc. 2d 799).
Coldwell Banker Commercial Group, Inc.,
Conversely, " leave should be denied if the proposed amendment is palpably insufficient
as a matter of law or is totally devoid of merit"
(see Leszczynski
v.
Kelly
McGlynn , 281
2d at 520).
Since requests under CPLR 3025(b) are granted liberally, this cour finds no
prejudice against defendants in awarding this request by plaintiff. The defendants were in
fact on notice that the action was commenced through the numerous communications via
the parties. For example , the affidavit of Karen M. Shipman , governance manager and
assistant secretar of Cellco Parership
d//a Verizon Wireless ,
concerns the present
action. Therefore , it is clear that she is aware of the suit. This suggests to the cour that
adding Cellco Parership would not create prejudice against the company. Furermore
the defendant Verizon Communications , Inc. States that Cellco Partership is prepared to
(see Reply Affrmation
defend the claim
of Defendants,
paragraph 5). The addition of Bell
Atlantic Nynex Mobile , Inc. aIa Bell Atlantic Mobile , Inc. , New York SMSA Limited
Parership d//a Verizon
Wireless to the complaint does not cause prejudice on the par
of the paries because they wil
have ample time
to acquire information durng discovery
and prepare a defense. Therefore , this cour can find no reason to deny the plaintiffs
motion to fie a supplemental summons and an amended complaint.
Accordingly, the motion by defendant, VERIZON COMMUNICATIONS , INC.
pursuant to CPLR 3211(a)(7) for an order granting defendant' s motion to dismiss
plaintiffs complaint on the ground that plaintiff has failed to state a cause of action is
denied.
The cross-motion by plaintiffs , Y
AL V ARZ
AMILA ALVARZ and JOHN GEORGE
pursuant to CPLR 3025(b) for an order granting plaintiff s leave to serve and
file a supplemental sumons and amended complaint is grted.
This con
.s.
ENTERED
UEC "
g1U j
NAS AUCOUNTY
CLERK' SOFF'CE
COUNT